Vijender @ Bijender v. Kesh Ram

1. This is a revision petition filed by the petitioner based on the order of the learned Sessions Judge dated 23.4.2010 by virtue of which the appeal for conviction under Section 138 of the Negotiable Instruments Act was dismissed and the judgment and the order of sentence dated 30.6.2010 respectively of the learned MM holding the appellant guilty for an offence u/S 138 Negotiable Instruments Act and consequently, sentencing him for six months and fine of Rs.2000/- apart from compensation of Rs.80,000/- was upheld.

2. The revision was filed by the petitioner challenging the order of Sessions Judge as being erroneous and improper. During the pendency of the revision petition, the petitioner filed an affidavit along with the application bearing no.5517/2011 stating that he has compounded the offence with the complainant and paid him the compensation of Rs.80,000/- towards full and final settlement 2011:DHC:1979[9] of his entire claim and the dispute has been settled and therefore, the order conviction passed by the learned Magistrate which was upheld by the Court of Sessions may be set aside and the accused acquitted. Affidavit of Sh.S.Chand/complainant was also filed along with an application wherein he has supported this version of the learned counsel for the petitioner.

3. I have heard the learned counsel for the petitioner and perused the record.

4. The learned counsel has relied upon the judgment of the Apex Court in number of cases where even at the stage of revision or appeal, the Apex Court have permitted the parties to compound the offence u/S 138 of the Negotiable Instruments Act de hors their compensation and sentence. Reliance in this regard has been placed on the orders by the Apex Courts. '*K.Gyansagar Vs. Ganesh Gupta & Anr. 11 (2006) BC 592 (SC) G.SivaraJan Vs. Little Flower Kuries and Enteprises Ltd. HI (2005) BC 470 (SC)''

5. The learned counsel for the petitioner has also placed reliance on the judgment in case titled Damodar S.Prabhu Vs. Sayed Babalal

6. This has been interpreted on account of the fact that Section 147 of Negotiable Instruments Act starts with non-obstente clause. So far as the permission to compound of an offence is required to be given. This non compoundable clause is stated to be over ruling Section 320 (9) under which permission of the Court is required to be obtained. On the harmonious construction of both the two provisions i.e. 320 (9) and Section 147 of the NI Act, it has been observed that the parties even at the belated stage of the appeal can be permitted to compound offence and so far as the delay in settling the matter is concerned, the parties can be put to terms. For this purpose, the Apex Court has laid down the guild lines in the judgment which are reproduced as under "The Guidelines

(i) In the circumstances, it is proposed as follows:

(a) The directions can be given that the writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding my be allowed by the Court without imposing any costs on the accused. (b)If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at the subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. fdj Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% ofthe cheque amount."

7. The learned counsel for the petitioner has stated that according to clause (c) of the guidelines if an application for compounding is made before the Court of Sessions or the High Court in Revision or appeal such a compounding may be granted on the condition that the accused pays 15% of the cheque amount by way of cost. It is in the context of these guidelines, the learned counsel for the appellant contends that since the offence has been compounded by the complainant with the petitioner, necessaiy permission may be granted subject to payment of cost in terms of para 15(i)(c) of the aforesaid judgment.

8. 1 have carefully considered the submissions of the learned counsel for the petitioner. I find that there is some merit in the contention of the learned counsel for the petitioner that once the party has compounded the offence then the only thing which a Court can do even though the compourlding has taken at the belated stage of revision is to impose cost which has to be 15% of the cheque amount.

9. In the instance case, the petitioner has compounded with the respondent/complainant whose affidavit is already on record. There is no reason for this Court to doubt the authenticity of the // genuineness of the compromise having been struck between the complainant and the accused persons. I accordingly, grant the permission to the petitioner to compound the offence with the respondents in terms of their settlement and accordingly, set aside the judgment of conviction and order of sentence dated 30.6.2010 passed by the leaned MM and the judgment dated 23.4.2011 passed by the Sessions Judge upholding the conviction and the sentence. The necessary consequence of this would be that the petitioner will be deemed to have been acquitted. Needless to say that the acquittal and the compounding is subjected to the condition that the appellant pays an amount of Rs. 10,500/- by way of cost to the Delhi High Court Legal Services Committee.

10. With these observations, the revision petition is allowed. JUNE 01, 2011 RN V.K. SHALI,J I2_ /